Labor and Employment

Published on: February 6, 2018

Mandatory Pay for Breaks Under the Fair Labor Standard Act

The Fair Labor Standards Act (“FLSA”) is a federal statute enacted in 1938 with the goal of setting national minimum requirements for employee compensation. It covers areas such as minimum wage and overtime, among other things.

On February 9, 2017, the Third Circuit Court of Appeals was the first United States Federal Circuit Court to address an area of the FLSA which is invoked relatively rarely in civil lawsuits involving compensation disputes. In a case captioned: Secretary, United States Department of Labor v. American Future Systems, Inc., the Department of Labor (“DOL”) sued on behalf of the employees of American Future Systems, Inc., claiming that the employer was violating the FLSA by not paying employees for time that they were logged off of their computers over 90 seconds.

The employer did not deny that it was not paying employees for “breaks” in excess of 90 seconds. The dispute was whether that non-payment violated the FLSA. Two different sections of the FLSA were evaluated.

Published on: February 5, 2018

When Does the Statute of Limitations on Harassment Begin: The Continuing Violation Doctrine

by Maurice W. McLaughlin

By typography-2858715__340-300x150 enacting the Law Against Discrimination, New Jersey has provided its workers with some of the strongest anti-discrimination laws in the United States. New Jersey’s Law Against Discrimination protects against employment discrimination, including harassment, because of these protected categories

race
creed

Published on: February 2, 2018

The United States Supreme Court Issues Major Decision on Tolling of Statute of Limitations in Employment Cases Under Supplemental Jurisdiction

by Maurice W. McLaughlin

partnership-2750197__340-300x200 The United States Supreme Court issued a major decision on tolling the statute of limitations on state law claims while the case is in federal court which has significant impact on New Jersey employment litigation. In the case of Artis v. District of Columbia, the Supreme Court answered a major procedural question regarding the interplay of federal and state claims being heard together in federal district court and state statutes of limitations. While the case involved an employment case in District of Columbia, it would be equally applicable to cases brought under New Jersey employment law.

Background

Stephanie Artis worked as a health inspector for the city government of the District of Columbia. She was fired. Thereafter, she filed suit in the United States District Court for the District of Columbia. She alleged a federal claim under Title VII of the Civil Rights Act of 1964 (known as “Title VII”). She also sued under District of Columbia law for whistleblower retaliations, false claims and gender discrimination.

Published on: January 22, 2018

Third Circuit Issues Important Decision on Religious Discrimination in Employment

by Maurice W. McLaughlin

votive-candles-2903933__340-300x200 Both New Jersey’s Law Against Discrimination and the Federal Title VII of the Civil Rights Act of 1964 expressly prohibit employers from discriminating against employees because of their religious practices if they can be reasonably accommodated. In many cases the most difficult question is whether an accommodation which the employer could have provided was “reasonable.” However, the Third Circuit Court of Appeals recently issued an important decision on the unusual question of whether an employee’s honestly and strongly held beliefs could be considered “religious” under Title VII.

Paul Fallon had been an employee of Mercy Medical Center since 1994. In 2012, Mercy instituted a rule that all employees had to receive a flu vaccination each year. Mercy allowed for religious exemptions. Fallon requested and was granted exemptions in 2012 and 2013. However, she was denied in 2014 because Mercy had changed its definition of religious exemption. There was no question that Fallon’s objection was because of his sincerely held belief that the vaccination did more harm than good. However, he cited no religious source, just his belief that it is wrong to cause harm to your own body. Mercy decided that this reason was not “religious” under its policy, and ordered Fallon to get the shot or provide a letter from clergy explaining why he could not get the vaccination for religious reasons. He failed to provide the letter and refused to be vaccinated. Mercy therefore fired him.

Fallon filed suit in Federal District Court alleging that Mercy had fired him because of his religious beliefs, and therefore committed religious discrimination in violation of Title VII. The trial judge disagreed and dismissed his suit. Fallon appealed to the United States Court of Appeals for the Third Circuit. The Third Circuit agreed with the trial judge’s opinion and upheld the decision.

Published on: January 19, 2018

Potential Roadblock for Certain Whistleblower Claims

by Pauline M.K. Young

whistle-2496555__340-300x200 In the case of DiFiore v. CSL Behring, LLC, a former pharmaceutical employee brought an action in the District Court for the Eastern District of Pennsylvania against her former employer for retaliation in the form of a wrongful, constructive discharge. In that case, the employee specifically brought claims under the federal False Claims Act (“FCA”) https://www.law.cornell.edu/uscode/text/31/3729 and Pennsylvania’s common law wrongful discharge cause of action. She claimed that she had raised concerns about off-label marketing of products which caused her employer to retaliate.

In that case, the District Court instructed the jury that, in order to prove retaliation under the FCA, the employee had to prove that the whistleblowing by the employee was the sole cause for the adverse action (firing or other retaliatory action). However, the plaintiff-employee argued that she need only provide that the whistleblower action was a motivating factor for the wrongful discharge – not that it was the only reason for the adverse employment action. The plaintiff was relying on a prior Third Circuit case, Hutchins v. ABC Corp. However, the Court determined that the “motivating factor” language in the Hutchins case was merely dicta – meaning that the language was extraneous to the decision and does not act as precedential.

The Court also decided that the United States Supreme Court decisions in Gross v. FBL Financial Services, Inc. and University of Texas Southwestern Medical Center v Nassar indicate that a “motivating factor” test is inappropriate. (The Gross case considered a claim under the Age Discrimination in Employment Act (“ADEA”) and the Nassar case considered a claim under Title VII of the Civil Rights Act.) In both cases, the Supreme Court found that the language “because of” in those laws, equated to the requirement of “but-for” causation. In other words, the adverse action would not have happened “but for” the improper motivation, requiring that to be the exclusive motivation. The ADEA, Title VII, and the FCA all contain that same language.

Published on: January 11, 2018

United States Third Circuit Court of Appeals Extends Winters Doctrine, Further Limiting New Jersey Government Employees’ Right to Appeal Wrongful Employment Decisions

by Maurice W. McLaughlin

Our employment lawyers represent many honorable New Jersey employees in disputes with their governmental employers.

The Winters Doctrine

As I wrote in a previous post, in 2012 the New Jersey Supreme Court created a serious hurdle for public employees. In the case of Winters v. North Hudson Regional Fire and Rescue, the Supreme Court held that an adjudication by the Civil Service Commission of allegations that a termination was illegal retaliation (even raised tangentially) barred subsequent litigation for violation of New Jersey’s Conscientious Employee Protection Act (known as “CEPA”) based on the same facts in a lawsuit in New Jersey Superior Court. The Appellate Division of New Jersey’s Superior Court subsequently held that such a bar applied to claims of retaliation raised in disciplinary appeals under both CEPA and New Jersey’s Law Against Discrimination (known as the “LAD”).

Published on: January 9, 2018

New Jersey’s Ban on Employers Inquiring about Criminal History Background Checks

by Pauline M.K. Young

police-2122373__340-300x200 In 2014, New Jersey’s Governor Christie signed The Opportunity to Compete Act which limited an employer’s ability to ask a potential employee about criminal records in many circumstances. The State passed this law based upon several findings, including:

Criminal background checks by employers have increased dramatically with an estimated ninety percent of employers in the country conducting such checks as a matter of course during the hiring process;
Barriers to employment based upon a criminal record could affect approximately sixty five million people in the United States;

Published on: December 12, 2017

New Jersey Whistleblower

by Maurice W. McLaughlin

whistleblower-1764379__340-300x300 New Jersey employment law protects employees who object to or report illegal conduct by their employers. New Jersey’s whistleblower protections, particularly the Conscientious Employee Protection Act, have been recognized as the strongest in the nation. The various sources of these protections are discussed below.

New Jersey’s Common Law – the Original Protection

New Jersey’s common law – the body of law derived from prior court decisions – holds that it is a civil wrong for an employer to fire an employee “in violation of a clear mandate of public policy.” What this has been interpreted to mean in the seminal New Jersey Supreme Court case of Pierce v Ortho Pharmaceuticals Corp. is that an employer cannot fire an employee in retaliation for the employee acting in opposition to a practice by the employer which was in violation of public policy, which in practice meant against the law.

Published on: November 17, 2017

Third Circuit Issues Important Wage & Hour Decision

by Maurice W. McLaughlin

Wage and Hour Laws Governing New Jersey Workplaces

The Fair Labor Standards Act is the federal law which, along with the Wage and Hour Division of the United States Department of Labor’s regulations found in the Code of Federal Regulations, governs overtime and minimum wage requirements. The Fair Labor Standards Act (known as the “FLSA”) requires that most employees (known as “non-exempt” employees, or those who are not exempt from overtime requirements) be paid “time and a half” for all hours they work over forty in any particular week.

In an action for violating the F

Published on: November 1, 2017

Third Circuit Court of Appeals Rules That Employers Must Pay Employees During Breaks of Twenty Minutes or Less

by Maurice W. McLaughlin

american-963190__340-300x200 Some of the most conflict-ridden areas in New Jersey employment involve wage and hour issues – who needs to be paid, how much, when and for what. An important Federal appeals court decision has shed light on one of the most contested topics in this area – when employees mostly paid for benefits.

The Wage and Hour Legal and Regulatory Framework

Wage and hour issues in New Jersey are governed by New Jersey’s Wage and Hour Law and New Jersey’s Wage Payment Law. Employers in New Jersey must also comply with the requirements of the Federal Fair Labor Standards Act (known as the “FLSA”), and the regulations put out by the United States Department of Labor implementing the FLSA. New Jersey courts follow federal court decisions on the FLSA when interpreting the Wage and Hour Law and the Wage Payment Law. The Regulations which the Department of Labor established are found in the Code of Federal Regulations, known as the “CFR.”